The invasion of the Russian Federation in Ukraine on 24 January 2022 is certainly not the first, but one of the most blatant attacks on the international legal order and one of the order’s foundational values, namely peace. It has enlivened widespread debates about the end of the liberal world order and, closely related to this, a crisis of international law.
In their think-piece,
Much Attacked, Still Standing: How the International Legal Order is Attacked and Defended, Heike Krieger and Andrea Liese examine the fate of foundational norms of the international legal order. Drawing on their newly edited book Tracing Value Change in the International Legal Order (Oxford University Press, 2023), they trace how different actors seek to undermine or defend key norms with regard to the prohibition of torture, the protection of women’s rights, the prohibition of the use of force, the nonproliferation of nuclear weapons, the value of precaution in sustainability norms, and the anti-impunity norm advanced by the International Criminal Court.
Bringing together international law and social science perspectives, Krieger and Liese show the difference between legally codified norms and shared social expectations, such as the expectation to ban the use of cluster bombs for its detrimental humanitarian impact. Importantly, this shared social expectation also affects non-parties to the 2008 Convention on Cluster Munitions, i.e., parties that are not bound by the norm in the legal sense.
Krieger and Liese show how the erosion or shifting prioritization of values can change the degree to which a value is legally protected and how legally protected values may change substantially over time. They stress the vital role of norm defenders, as robust norms have been defended by legal institutions, key states, and non-state actors who uphold normative expectations. Krieger and Liese emphasize worrying trends of increasing contestation of legally protected values, combined with restricting NGOs from promoting and defending international norms and delegitimizing international courts and other institutions. If this trend continues, a foundational change in the international legal order might be unstoppable.
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